New US News and World Report Article Urging Colleges to Reject Trump's "Compact" With Higher Education

I coauthored the article with four other legal scholars from across the political spectrum.

Steven Cukrov | Dreamstime.com

US News and World Report just published an op ed I coauthored with four other legal scholars entitled "Colleges Must Reject Trump's 'Compact' To Protect Our Democracy." The four other authors are Rick Garnett (Notre Dame), Serena Mayeri (University of Pennsylvania), Amanda Shanor (University of Pennsylvania), and Alexander "Sasha" Volokh (Emory, also my co-blogger here at the Volokh Conspiracy). 

To put it mildly, the five of us have widely divergent views on political and legal issues.  Serena Mayeri and Amanda Shanor are prominent progressive constitutional law scholars. Rick Garnett is a leading conservative constitutional law and law and religion specialist. Sasha Volokh and I are libertarians (him perhaps somewhat more radical than me).

But we all agree colleges should reject the "compact" for both constitutional and other reasons. Here's an excerpt from the article:

We teach law at four different U.S. universities and come from a range of political and legal perspectives. But we all agree that universities should vehemently and unanimously reject the Trump administration's "Compact for Academic Excellence in Higher Education."

The federal Department of Education first sent this compact to nine universities in October, stating that signatories would receive preferential consideration for federal grants. The compact itself conditions benefits such as federal contracts, tax-exempt status, student loans and student visas on the adoption of various government prescriptions for admissions, hiring, tuition, curriculum, discipline, international student enrollment, grading and free speech….

Universities that have balked at – or outright rejected – the compact are correct to do so. The administration's proposal contains five fundamental causes for alarm:

First, the compact tramples upon the constitutional rights that allow us to debate and disagree without fearing reprisals from our universities or from the government….

Second, the compact amounts to a federal takeover of private institutions and state entities. It threatens to withdraw federal benefits from any university that does not submit to the federal government's demands. Such imposed ideological uniformity would undermine the competition that spurs innovation and empowers students and faculty to "vote with their feet" for the schools that best meet their needs.

Moreover, the compact's approach to federal funding is unlawful and unconstitutional: Conditions on federal grants to state governments, including state universities, must be clearly stated in advance, related to the funds' purposes and not unduly coercive….

Third, the compact violates the constitutional separation of powers. Under the Constitution, Congress, not the executive, wields the power of the purse. An executive agency – here, the Department of Education – cannot withhold funds or place new conditions on monies Congress has allocated without clear and explicit legislative authorization….

Fourth, the compact places universities in a dangerous financial position, facing draconian penalties without due process – or any process at all. The compact authorizes the government and private donors to claw back federal dollars whenever federal officials are displeased with a university's actions. Signatories to this agreement would forfeit their autonomy and the fundamental freedoms of their community members….

Finally, the compact is riddled with internal inconsistencies that render it both incoherent and dangerous. The agreement claims to value "merit" in higher education, but offers preferential consideration for federal grant money based on universities' adherence to government-mandated ideology rather than scientific excellence. It prohibits discrimination based on "political ideology" while requiring special protection for "conservative ideas," and exclusion of foreign students based on their speech and political views.

Some of the issues raised in the US News article are addressed more fully in my forthcoming book chapter, "How Speech-Based Immigration Restrictions Threaten Academic Freedom," Academic Freedom in the Era of Trump, Lee Bollinger and Geoffrey Stone, eds. (Oxford University Press, forthcoming). Ideological and speech restrictions on foreign students are a major element of Trump's Compact.

As we note in the US News article, many prominent schools have already rejected the Compact, including eight of the nine to whom it was initially offered. But a few less well-known institutions have expressed willingness to join it. We hope no more do so.

For those keeping score, I have, in the past, extensively criticized constitutionally dubious higher education policies advanced by Democratic administrations, such as racial preferences in admissions and Biden's massive (and illegal) student loan forgiveness program.

Comments

[Bunny495]

"Fourth, the compact places universities in a dangerous financial position, facing draconian penalties without due process – or any process at all."

I actually did automated financial accounting at a large university in the office of contracts and grants. Truth be told over the last few decades universities are responsible for getting into a "dangerous financial position". Tuition and student fees don't come close to what it costs to run a university. It takes a massive input of tax money to make up the difference. The problem universities are facing is the tax payers don't feel they are getting their monies worth. Even what I will term "good degrees" don't generate income for the holders large enough to pay back what they cost. For a large number of students attending a university is a waste of time and money.

Bottom line is he who pays the piper calls the tune.

[thesafesurfer]

Another glimpse into the chaos of Ilya's ideology. In an era of DEI, CRT, and cancel culture Somin pushes the delusion that universities currently allow disagreement and open debate. Let us ask the ghost of Charlie Kirk that question at Utah State. Then Ilya claims that academics can gorge like swine at the trough of taxpayer dollars as if it is another of his "rights" concocted out of thin air. He champions the constitutional rights of academics while academics are serial violators of the constitutional rights of others.

The last point is damning of the academy. Somin says that higher education is in a precarious financial position. What? The best and the brightest running the ivory towers have squandered the trillions of precious taxpayer dollars that originated with the "UNINFORMED ELECTORATE” of plumbers, waiters, and housekeepers that the Professor vilifies as unfit to have meaningful participation in their own democracy.

The nation will benefit in every way imaginable by utterly ignoring this ludicrous utterance of Somin and his four henchmen.

We can only hope that those brilliant educators who agree with this article's argument will leave the United States in protest and take their "immense talents" to Europe, Africa, and Asia after their institutions make the deal.

[bloocow2]

It's pretty subtle, but I get the feeling that you don't like universities very much. Do you really think they will be better without viewpoint independence from government control? What do you believe the point of a university is?

I'm also a little confused as to where you get Somin's views about the "uninformed electorate" from, as it's not anywhere in the article. You put it in quote marks, so presumably it comes from somewhere? Or something that he wrote? I don't want to dismiss your writing as an unhinged strawman of a rant or anything, so I'd appreciate you showing your sources.

[Roger S]

Universities do not appear to have much viewpoint independence, as they are mostly controlled by Trump-haters.

[Roger S]

Are any of the authors American?